Issues around jury selection, the lengthy debate over admissible evidence, and problems with defense attorneys have delayed opening statements in the seditious conspiracy trial of Proud Boys ringleader Henry “Enrique” Tarrio and four of his associates for more than a week.
As things stand now, proceedings are on track to begin Thursday afternoon, but given the many issues at play, it wouldn’t be a complete surprise if opening statements didn’t start then, either.
RELATED: The Proud Boys seditious conspiracy trial is underway
Including the seditious conspiracy charge, Tarrio and his Proud Boys co-defendants, Ethan Nordean, Zachary Rehl, Joseph Biggs, and Dominic Pezzola, face no fewer than nine charges each for alleged crimes connected to the Jan. 6 attack at the U.S. Capitol. All of the defendants held leadership positions in the neofascist organization. All have pleaded not guilty.
The seditious conspiracy charge alone carries a maximum 20-year sentence.
Jury selection began in earnest on Dec. 19 at the federal courthouse in Washington, D.C., but it was not until this week that a dozen jurors—and four alternates—were finally empaneled. The jury makeup features nine women and seven men.
According to The Washington Post, it took roughly two weeks for a jury to come together, since the Proud Boys’ reputation preceded itself in the nation’s capital. Not only were many of the prospective jurors aware of the Proud Boys' presence at the Capitol on Jan. 6, but they were also hip to news reports about the group’s “violent altercations” in Washington weeks before the insurrection.
Proud Boys hit the street en masse on Dec. 12, 2020, for a pro-Trump “Stop the Steal” rally that ended in bloodshed and street brawling.
Notably, in a Washington Post report about the clashes among Proud Boys, pro-Trump protesters, and counterprotesters, it is defendant Dominic Pezzola who appears in the main photo accompanying the story.
Pezzola, prosecutors say, was among the very first rioters to breach the Capitol on Jan. 6. He is alleged to have used a stolen police riot shied to smash a Capitol window before crawling through it with co-defendant Joseph Biggs.
The group’s reported history of violence has made jury selection difficult, but so too have perceptions about the group’s ideology. Some prospective jurors who were disqualified said they could not be impartial because they “hated” the Proud Boys generally and believed them to be white nationalists who support fascism.
The group has tried to distinguish its own self-professed ideology of “Western chauvinism” from white nationalism since its founding in 2016, though without much success. Watch groups for hate have deemed “Western chauvinism” a rose by another name: The philosophy is steeped in anti-immigrant, pro-white, misogynist, and antisemitic sentiments. (When a member is initiated, they state: “I am a Western chauvinist, and I refuse to apologize for creating the modern world.”)
The group has also spent years affiliating with white supremacist groups and movements, as noted by the Southern Poverty Law Center. It was Proud Boys recruiter Jason Kessler who helped organize the 2017 Unite the Right rally in Charlottesville, Virginia, that left one woman, Heather Heyer, dead.
Heyer was killed when white supremacist James Alex Fields Jr.—who drove 500 miles from his home in Ohio to attend the event in Virginia—rammed his car into Heyer and a group of people counterprotesting the arrival of Nazis and other white supremacists and extremists in their quiet rural town.
As jury selection got rolling in December, a Proud Boys defense attorney lamented that too many jurors had prejudiced the Proud Boys as “violent,” “racist,” or “extremist.” The defense attorney also bristled at the notion that too many jurors had found members of the group akin to “terrorists, dictators, or worse.”
In a comprehensive report published Tuesday by Law & Crime, it was noted that Nicholas Smith, attorney for defendant Ethan Nordean, took issue with the selection process. Justice Department prosecutors used their preemptory challenges to boot six white people from the jury pool, including five white men. Smith argued that this was proof that prosecutors were discriminatory with their initial round of challenges and wanted to keep more white people off the jury
Assistant U.S. Attorney Jason McCullough told presiding U.S. District Judge Timothy Kelly, a Trump appointee, that they removed at least one of the jurors because he had views sympathetic to “antifa,” or the anti-fascist movement. Others were removed over concerns that their professions could unduly influence their decision-making. One prospective juror was a Catholic priest, and as Law & Crime noted, prosecutors said they struck the priest from the pool because they worried that “defense attorneys might seek to exploit his occupation by appealing to his sense of redemption or equity.”
Judge Kelly ultimately waved off Smith’s complaints of discrimination as unfounded.
There were other delays, too.
One potential juror was released after they raised concerns with Judge Kelly about their fear of retaliation. According to CBS affiliate WUSA9, the juror asked to be removed because they worried about what may happen to them or their family if they voted to convict any of the defendants. No threats had been issued, the prospective juror said, but the thought of serving on the jury alone triggered significant anxiety. That person was dismissed. Facing similar fears over retaliation, a different juror asked to have all of their personal information struck from the court’s public record.
Opening statements were delayed after Norm Pattis, the attorney representing defendant Joseph Biggs, had his law license suspended for six months by a Connecticut judge.
Pattis represented right-wing conspiracy theorist Alex Jones when Jones was sued for defaming the families of the victims of the Sandy Hook school shooting. Jones was ordered to pay $1.4 billion in damages. Pattis’ license was suspended after the judge ruled that he improperly shared documents during that case with other lawyers representing Jones elsewhere. Those documents included sensitive medical records that belonged to the victims’ relatives. Pattis tried to waylay the suspension so he could stay on in the Proud Boys case, but to no avail thus far. According to The Hartford-Courant, Pattis lost his bid to postpone the suspension on Thursday and intends to seek an appeal.
Late Wednesday, Politico reported that Pattis said in court he intends to withdraw from the case. That would leave only Biggs’ other attorney, Dan Hull, to represent him. WUSA9 reported that Judge Kelly wasn’t terribly keen on the idea of releasing Pattis because of other issues surrounding Hull.
Hull revealed in court Wednesday that he had been in contact with a witness for the prosecution, Proud Boy Jeremy Bertino, when he first sought legal representation. Hull reportedly failed to mention this before this late stage in proceedings. When Bertino met with the House Select Committee to Investigate the Jan. 6 Attack on the U.S. Capitol, transcripts show Bertino describing Hull as unstable.
Hull described Bertino in court Wednesday as “very emotional and skittish,” Politico reported.
Bertino pleaded guilty to seditious conspiracy in October.
The timing of Bertino’s chat with Hull also raised concerns; it was around the pivotal moments in the FBI’s probe of the Proud Boys. When Hull offered to bring another lawyer into the mix, Judge Kelly rejected the proposal. If and when Bertino is cross-examined, Kelly said another attorney from the mix of defendants would conduct questions, or he would appoint someone himself.
The start of the trial has been an uphill battle for prosecutors and defense attorneys alike, but prosecutors scored at least one crucial victory before opening statements began.
Judge Kelly ruled Wednesday that prosecutors will be allowed to use video footage of former President Donald Trump telling the Proud Boys to “stand back and stand by” as evidence at trial.
Kelly said Trump’s remarks provided the defendants with an “additional motive,” CNN reported.
Trump told Proud Boys to “stand back and stand by” during a presidential debate with Joe Biden in 2020. The former president was asked by moderator Chris Wallace if he would disavow white supremacist and extremist groups.
When Trump pressed Wallace to “give me a name,” Biden interjected and said, “Proud Boys.”
Trump then replied: “Proud Boys, stand back and stand by. But I’ll tell you what. I’ll tell you what. Somebody’s got to do something about antifa and the left, because this is not a right-wing problem.”
In a post on the right-wing social media platform Parler that night, Tarrio replied: “Standing by, sir.”
Before adjourning Wednesday, Judge Kelly said all parties should assume that opening statements would be made Thursday. Court will reconvene at 9 AM ET with any remaining conflicts addressed first, though that could eat up a large portion of the day.
Daily Kos will start with its live coverage of proceedings beginning Thursday, Jan. 12. For more details on the charges involved, check out the related story here.